PUNCAK NIAGA CONSTRUCTION SDN. BHD. v TM TECHNOLOGY SERVICES SDN. BHD. (yang telah mengambil alih hak Aset-Aset dan Liabiliti-Liabiliti Telekom Malaysia Berhad melalui Perintah bertarikh 21.2.2023 dan berkuatkuasa pada 1.3.2023)

Case Significance

Confirms that the duty-of-care obligations attaching to excavation works, utility mapping and prior notification to affected utility owners, are non-delegable, so a contractor that omits those safeguards is directly liable for resulting damage to third-party infrastructure, even where the work is carried out through sub-contractors.

This High Court appeal at Kuala Lumpur concerns a contractor's liability in negligence for damage to underground telecommunications infrastructure during excavation. The appellant contractor, Puncak Niaga Construction Sdn Bhd, was held liable to pay RM254,031.50 in damages to the respondent, TM Technology Services Sdn Bhd, which had taken over the assets and liabilities of Telekom Malaysia Berhad, for breaching its duty of care by failing to conduct utility mapping and to notify the telecommunications provider before commencing excavation works. The central legal holding was that a contractor cannot delegate its duty of care through the engagement of sub-contractors and remains directly liable for failing to put proper safeguards in place. The court's reasoning drew the familiar distinction between vicarious liability and the direct, non-delegable responsibility a contractor bears for its own works: even where excavation is carried out through others, the obligation to identify buried utilities and to give advance notice to the affected utility owner rests on the contractor itself, and its omission to implement those precautions was a breach of duty. On the remaining elements of the claim, the court was satisfied that both causation and the quantum of loss had been established on the balance of probabilities, supporting the award of RM254,031.50. The judgment is a useful statement that the duty-of-care obligations attaching to excavation works, utility mapping and prior notification to utility owners, cannot be shed by sub-contracting, and that a contractor which fails to implement those safeguards is directly answerable for the resulting damage to third-party infrastructure. It is a practical illustration of the boundary between a party's own primary duty of care and mere vicarious responsibility for the acts of an independent contractor. The court also confirmed that liability was not diminished by the involvement of others in carrying out the works, the primary obligation to protect known or discoverable underground services being the contractor's own.